Nestle Waters North America, Inc. v. Mountain Glacier LLC (In re Mountain Glacier LLC)

(Sixth Circuit Dec. 11, 2017)

The Sixth Circuit affirms the bankruptcy court’s decision finding the reorganized Chapter 11 debtor retained its claims against the defendant in a pre-petition arbitration. The court finds that the debtor sufficiently identified the claim in its disclosure statement and the plan provided that it would be transferred to the reorganized debtor. Nothing more was required to retain the claim. Opinion below.

Judge: Thapar

Attorney for Debtor: Bradley Arant Boult Cummings, William L. Norton, III

Attorneys for Defendant: Pepper Hamilton, Robert S. Hertzberg, Deborah T. Kovsky-Apap; Baker Donelson, Courtney Hunter Gilmer, John Hayden Rowland

2017-12-11 – in re mountain glacier

Author: Matt Lindblom

Edmonton State Bank v. Smith (In re Smith)

(Bankr. W.D. Ky. Dec. 6, 2017)

The bankruptcy court finds that two tobacco pole barns on the debtor’s property were fixtures and thus subject to the plaintiff bank’s mortgage. Two other creditors with security interests in the debtor’s personal property argued that the barns were instead subject to their liens and thus the insurance proceeds following destruction of the barns in a wind storm should be subject to their lien. The court analyzes Kentucky law on fixtures and rules in favor of the mortgage holder. Opinion below.

Judge: Lloyd

Attorney for Plaintiff: T. Richard Alexander, II

Attorney for Debtor: Sullivan Mountjoy Stainback & Miller PSC, K. Timothy Kline

Attorney for Defendants: Brian R. Pollock; Adam R. Kegley

2017-12-06 – in re smith

Author: Matt Lindblom

Whirlpool Corporation v. HHGreg, Inc. (In re HHGregg, Inc.)

(Bankr. S.D. Ind. Dec. 4, 2017)

The bankruptcy court grants the motion to dismiss, finding the defendant’s security interest in the debtor’s assets, including its inventory, has priority over the plaintiff’s reclamation rights. The plaintiff sold goods to the debtor up to the petition date and sought either return of the goods delivered within the reclamation period or recovery of the proceeds from the sale of such goods. Pursuant to 11 U.S.C. § 546(c), the Court finds the reclamation rights are subordinate and the complaint should be dismissed. Opinion below.

Judge: Jeffrey J. Graham

Attorneys for Plaintiff: Warner Norcross & Judd LLP, Robert Michael Azzi, Stephen B. Grow, Janet L. Ramsey; Rubin & Levin, P.C., Joshua W. Casselman, James E. Rossow, Jr.

Attorneys for Defendants: Ice Miller LLP, Adam Arceneaux, Sarah Lynn Fowler, Jeffrey A. Hokanson; Morgan Lewis & Bockius LLP, Andrew Joseph Gallo, Neil E. Herman; Choate Hall & Stewart LLP, Mark D. Cahill, Sean Monahan, John Ventola; Faegre Baker Daniels LLP, Terry E. Hall, Jay Jaffe; DLA Piper LLP, David E. Avraham, Stuart M. Brown, Jeffrey Scott Torosian

2017-12-04 – in re hhgregg

Author: Matt Lindblom

(B.A.P. 6th Cir. Nov. 28, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s dismissal of the Chapter 12 bankruptcy case. The court finds that the bankruptcy court failed to give the debtor proper notice and opportunity to be heard prior to the dismissal. However, the violation of due process was harmless error. The delay in filing a confirmable plan and continuing loss to the estate warranted the dismissal. Opinion below.

Judge: Preston

Attorney for Appellant: Heather McKeever

Attorneys for Appellees: Carrie Ann Rohrscheib; Bradley Arant Boult Cummings LLP, Edmund S. Sauer

2017-11-28 – in re haffey

Author: Matt Lindblom

In re Dickson

(Bankr. E.D. Ky. Nov. 22, 2017)

The bankruptcy court grants the the creditors’ motion for sanctions pursuant to Bankruptcy Rule 9011. The creditors argued that the debtor filed her Chapter 11 petition in bad faith. The court finds that sanctions are appropriate because the debtor filed the petition without a legitimate bankruptcy purpose. The debtor sought the protection of the automatic stay but did not intend to reorganize or seek an orderly liquidation. Instead, the debtor sought to obtain a civil remedy—the stay of execution of the judgment against the debtor while her appeal was pending. Opinion below.

Judge: Wise

Attorneys for Debtor: Gess Mattingly & Atchison, William W. Allen, Stefan J. Bing, John Thomas Hamilton, Elizabeth Thompson

Attorney for Creditors: DelCotto Law Group PLLC, Jamie L. Harris

2017-11-22 – in re dickson

Author: Matt Lindblom